10 April 2012

It's common to think of getting a lawyer to represent you when faced with criminal or civil court proceedings. The stakes are high, the rules of procedure and evidence complicated, so a lawyer seems the natural choice. But what about hearings that aren't in a court of law? Are lawyers needed there? When should legal advice be sought for these non-court hearings, or during the investigations that lead up to them ?

I know there's some legitimate hesitation over involving lawyers in all aspects of human life, even though the law permeates our lives. Some private matters - like minor disputes between neighbours - might be best sorted out without lawyer escalation. The stakes are low, there is no imbalance of power between the parties, and the risk of legal errors is minimal. But in disputes where the stakes are high, there is a power imbalance, and a legal error can lead to a very bad outcome, you really should consider involving a lawyer as soon as possible.

One of the areas of legal practice I engage in is professional discipline, where I represent individuals either being investigated or prosecuted for professional misconduct offences. Just because the prosecution can't lead to jail doesn't mean it isn't serious. Permanent termination of your professional livelihood could have a far more devastating effect on you and your family than perhaps even a criminal conviction in a court of law.

The challenge with professional discipline matters is that they can creep up on you, where one moment you are working with your regulator to achieve voluntary compliance on routine regulatory requirements, and the next you are being dragged before a hearing tribunal accused of misconduct. With the police, you might be on guard from the start with respect to what you say, know that you generally don't have any duty to assist the police with most investigations, and realise that the police require prior judicial authorization in order to demand and seize records from you. Not so with professional regulators.

In exchange for the privilege - not right - of practicing your profession, you've explicitly or implicitly agreed to be subject to all sorts of rules and intrusive information gathering powers. The quite reasonable goal is protecting the public from the few shady professionals out there who would take advantage of their professional positions in order to abuse the trust of the public, secure unreasonable financial advantage for themselves, or flaunt the ethical rules governing the profession. The tricky part for every professional is navigating the interface between the rules and the public, which usually takes the form of a professional regulatory body and could also manifest itself through an employer like a hospital.

To take the example of physicians, if you are asked about your conduct concerning the care of a patient a host of legal questions could arise.

Who are your required to respond to?

What information must you provide?

What are the consequences of not responding or not providing all requested information?

What could be the consequences of your disclosing facts which could lead to an investigation into your own actions or the actions of others?

What should you do if accused of professional misconduct? How can you best demonstrate your innocence?

What kind of settlement with your professional regulator might be negotiated?

What kind of evidence is admissible before a professional discipline tribunal, and are the rules different from those applicable in a court of law?

What kind of rules of procedure govern discipline tribunals?

What sort of rights of appeal do you have if convicted of professional misconduct by a tribunal?

These are all questions that a lawyer may be best placed to answer.

If you're looking for a lawyer to assist you with professional discipline matters, make sure you seek out one with a background in these kinds of cases because they straddle the criminal and civil litigation realms - not all criminal or civil litigators will be willing to undertake or be familiar with the work. Unlike criminal investigations, you may actually be required by law to provide information to a professional misconduct investigator, however unlike most civil matters there can be penal consequences for failing to cooperate.

Rules of procedure and evidence before professional discipline tribunals can be quite unique to each tribunal, and are generally less formal than those you will find in a court. But as a regulated professional you still have rights, including rights to an investigation and hearing process that operates in a manner consistent with principles of natural justice.

While professionals being taken before a discipline tribunal may be more able to afford legal representation than the general public when dragged into a criminal or civil court, professionals should not underestimate the potential resources required to mount a vigorous defence to professional misconduct allegations. Hearings can be lengthy and complex, and appeals can extend proceedings. Legal Expense Insurance is available in Canada at reasonable cost to cover legal representation in many professional discipline situations, especially for healthcare and education professionals.

Involving a lawyer as early as possible during the investigative - rather than formal hearing - stage of a regulatory professional misconduct inquiry is likely the best strategy for minimizing your legal fees, as the lawyer will be able to guide you on which information you do and do not have to provide to regulators, and might be able to negotiate a settlement of your matter prior to it going before a formal tribunal.

06 April 2012

Lately, lots of clients and prospective clients have been asking me the very brief but important question: "Should I appeal?" Wrapped up in those three words are all sorts of hopes, fears and realities, at least some of which I'll try to sort out for you in this post.

Hopes

First the hopes. The fundamental hope is that the appeal will improve upon the results at trial. When clients ask me what their chances are on appeal, I officially need to tell them: "it depends." Depends on the law and facts at their trials, on which judges they draw on appeal, and perhaps in which directions the judicial appellate winds are blowing in Canada during a particular year for the legal issues which can be best contested on appeal.

But statistically, I can tell them that about 1/3 of criminal appeals succeed, and about 1/4 of civil appeals are successful. That criminal appeals have a higher rate of success is quite consistent with the courts wanting to do everything possible to protect the rights of the accused from wrongful convictions, or serious rights violations. These factors don't come into play in civil appeals. But even a one in four chance still isn't bad odds. In fact, your odds on appeal may be as good or better as your odds at trial.

One does need to be realistic about the likely outcome of even a successful appeal. Here the civil outcomes may be better than the criminal outcomes. In the criminal world for successful conviction appeals the outcome is likely the ordering of a new trial. Not really such a bad result, because the conviction is overturned, but you need to be prepared both psychologically and financially for another trial. The Crown won't always proceed with a new trial, but you need to be prepared just the same.

Successful sentence appeals in criminal matters are more to the point: either the court of appeal will substitute an appropriate sentence itself, or less commonly will send the case back to the trial judge for resentencing based on the correct legal principles. A new sentencing will, in any case, still be a relatively quick process compared to a new trial.

It is rarer for a court of appeal to overturn a criminal conviction and enter an acquittal itself - rather than letting the trial court reconsider if an acquittal is justified during the course of a new trial - but it does happen. Retaining a skilled and experienced appellate lawyer will ensure you maximize your chances of an acquittal on appeal.

On the civil side of appeals you don't see these same tendencies towards ordering retrials. New trial orders do occur, but courts of appeal dealing with civil matters seem more open to correct the errors of lower courts through proactive action in order to bring some finality to proceedings.

Fears

Next the fears. You might wonder: could things get worse if I appeal? Probably not. At least in criminal matters. Starting an appeal can always invite a cross-appeal from the other side - either in retaliation for daring to appeal the trial judgment, or because your opponents figure that if they are going to be paying legal fees to respond to your appeal, they might as well appeal themselves which might not require expending much more in the way of legal fees that just responding without cross-appealing.

This appeal in retaliation or because you're going to be there anyway decision process generally doesn't come into play in criminal proceedings, where the Crown's decision making is governed by what is in the public interest. So appealing your conviction or sentence will usually mean at worst that you are stuck with the trial result if you lose, not that you'll get convicted of extra offences or have your sentence increased.

Unless you can negotiate some kind of binding agreement with the parties after trial where all agree not to appeal, I tell clients not to base their appeal decisions on what the other parties might or might not do. If everyone has 30 days to appeal, you can't wait until the 29th day to determine if an opposing party will appeal before deciding on your own appeal. Sound appeal decision making needs to start on the day of judgment, so that you have the full 30 (or fewer) days to assess your appeal prospects, grounds, and the resources you will use to pursue the appeal.

Realities

Lastly the realities. An appeal will cost you more money, after you may have already spent quite a bit on your criminal defence or civil claim at trial. It might cost less or more than your trial cost, depending on the length of your trial as well as the complexity and number of the issues to be appealed. Plus you'll need to budget for transcript costs, which can be in the range of $500 or so per day of trial (you usually need 5 copies to be ordered if proceeding to a court of appeal - but depends on how many judges will be sitting on your appeal, and the local rules of court).

The upside is that appeal costs are much easier to predict in advance than trial costs. Most lawyers (at least criminal lawyers) will usually quote you a flat fee for their fees on an appeal, so you can assess in advance if it's worth it to you. You'll be faced with the age old dilemma: I've already spent so much at trial, how can I possibly stop fighting now when I do have a reasonable chance of success on appeal? - versus - should I just cut my losses and stop fighting now?

One way to resolve this dilemma is to retain a lawyer just to give you an opinion about your prospects of success on the appeal, before committing to a full blown appeal. However, because that lawyer will often need to see the trial transcripts in order to give you an opinion, and your notice of appeal will usually need to be filed within 30 days of the trial judgment, you might be best off just hiring someone for the whole appeal in order to avoid transcript delay and having to file a protective basic notice of appeal.

So, should I appeal? I would say the answer is definitely "YES" if your case isn't totally hopeless (these are rare) and there was a big downside to the trial judgment (getting a criminal record when you never had one before, having to serve a long prison sentence or pay a large fine or large award of damages in a civil case, or you lost an important argument on a point of principle).

You should canvass appellate lawyer fees before deciding you can't afford an appeal. Because you may be able to receive a fixed price quote, and the only significant disbursement may be the transcript costs, an appeal could actually be more affordable than you thought it would be.

For instance, I'm often able to conduct appeals for clients across Canada at rates that are competitive to local counsel. I don't charge clients any extra for travel costs because appeals represent a significant investment by a client for which I will devote quite a bit of time, appeal hearings usually take less than a day (unlike trials that can drag on for weeks), and certain preliminary matters like bail pending appeal applications or other motions can be dealt with before a court of appeal by way of video or teleconference. For Federal Court and Tax Court matters, hearings are held throughout Canada so there can be some choice as to where a case proceeds. Plus my office is close to the Supreme Court of Canada, if you're considering an appeal from the judgment of a court of appeal (usually you can attempt two appeals - each to a higher level of court - and sometimes three appeals are possible).

But in getting a fair answer to the question "should I appeal?" make sure you consult counsel with appellate experience. For example, I have appeared as appellate counsel several times before the Supreme Court of Canada, and many times before provincial and federal appellate courts.

The appeals process is quite different from the trial process, and legal rather than factual arguments predominate. Your lawyer needs to understand what appeal judges want to read in the extensive written arguments which are filed, how to craft trial facts based on the trial evidence transcripts and exhibits in the way which most persuasively supports your legal argument, how to pitch nuanced points of law to the appeal court, and how to present an oral argument that removes any doubts which remain among the appeal judges about the correctness of your written submissions which they'll have received long before the hearing of the appeal.

The wide (but not unlimited) availability of appeals within Canada means that being a party to litigation (whether as an accused, a civil plaintiff or defendant, or in administrative proceedings involving government) involves being prepared for more of an endurance race than a sprint.